Obama May Separate Facebook and the Fourth Amendment

Posted on May 8, 2013

The Obama administration is on the verge of backing an FBI plan that would require websites that receive a wiretap order to comply by building surveillance capabilities into their communication services, officials say. Fines for those targeted companies that fail to add such functions would start at $25,000 a day.

Critics of the proposal contend it runs afoul of the Fourth Amendment’s protection against unreasonable search and seizures.

Both the public and Congress reacted with protest when after the 9/11 attacks the Bush administration revealed a mass surveillance plan known as Total Information Awareness. Congress defunded the program in 2003, but as prescient critics noted at the time, officials who wanted to closely monitor Americans would eventually acquire the means to do so by breaking up surveillance practices into numerous different offices. The White House-backed FBI plan is the latest iteration of that effort.

The F.B.I. director, Robert S. Mueller III, has argued that the bureau’s ability to carry out court-approved eavesdropping on suspects is “going dark” as communications technology evolves, and since 2010 has pushed for a legal mandate requiring companies like Facebook and Google to build into their instant-messaging and other such systems a capacity to comply with wiretap orders.